Equal Protection and Women’s Rights

I wonder whether the Fourteenth Amendment’s equal protection clause protects women’s rights to control their reproduction, since we can’t seem to get there with substantive due process. But as an initial matter, originalism seems to pose a problem.

In fact, it is sometimes proposed that the equal protection clause was intended only to prevent state discrimination against black people and no one else. If that’s right, the entire premise that equal protection applies to sex discrimination is incorrect.

Certainly, at the time of the provision’s ratification, women were not equal under the law. Nor was there any significant move to abolish laws making women second class citizens after ratification of the Fourteenth Amendment.

I have expressed my doubts about the utility of so-called liquidation. But more fundamentally, as argued by Professor Amar, this pinched interpretation of equal protection is hard to square with the text.

By its terms, the clause prohibits states from denying equal protection of the law to any “person.” There is no textual indication that the prohibition is limited to racial discrimination.

Compare the Fifteenth Amendment, ratified two years later, which does not allow states to deny citizens’ right to vote “on account of race, color, or previous condition of servitude.” The Fifteenth Amendment is clearly directed at race in particular and did not grant women the right to vote. That would require a subsequent amendment, the Nineteenth.

Professor Amar contends that the Fifteenth Amendment was intended to recognize the service of freedmen in the Union army during the Civil War. Military service made one a member of the political community, and entitled to vote. Not so for women.

The Reconstruction Congress thus knew how to address race specifically when that was their intent. The equal protection clause protects “persons” without limitation based on “race, color, or previous condition of servitude” and such an atextual limitation can’t justifiably be read into the provision.

And further, the Fifteenth is limited to “citizens” because of course non-citizens can’t vote at all. But that must mean that non-citizens (even illegal aliens) are also entitled to equal protection, since they too are “persons.”

Or does this prove too much? Every law inherently discriminates against some persons. Murder laws discriminate against murders. Do all laws violate equal protection?

Obviously not. Equal protection prohibits the government from burdening individuals based on arbitrary characteristics unrelated to the purpose of the law. Arbitrary burdens amount to invidious discrimination lacking any legitimate government purpose.

Now, some line drawing will necessarily be inexact. Prohibiting minors under 16 from driving reflects a general assessment about the maturation rates of teens. Some fifteen year olds would make excellent drivers and some 17 year olds are terrible. But the classification is not arbitrary and the government is given some latitude in achieving its legitimate goals (road safety in this example).

In addition, in the famous footnote 4 of Caroline Products, Justice Stone described how laws directed at certain “discrete and insular minorities” require a “more searching judicial inquiry.” On this basis, the Supreme Court has deployed heightened scrutiny when reviewing laws that discriminate based on certain protected classes, such as race, national origin, or parentage.

Women are not insular or a minority, but the Court has applied heightened scrutiny in cases of sex discrimination as well. This seems reasonable, because while Justice Alito pointed out in Dobbs that women are “not without electoral or political power,” neither are they on an equal playing field with men in terms of social or economic power.

But is it the proper function of equal protection to fix that?